People v. Northern

• Decision Date: 15 November 1967
• Docket Number: Cr. 12853
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Harry NORTHERN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 15

64 Cal.Rptr. 15

256 Cal.App.2d 28

The PEOPLE of the State of California, Plaintiff and Respondent, v. Harry NORTHERN, Defendant and Appellant.

Cr. 12853.

Court of Appeal, Second District, Division 5, California.

Nov. 15, 1967.

Hearing Denied Jan. 11, 1968.

Arthur Kessler, Los Angeles, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse, Philip R. Birney, Deputy Attys. Gen., for respondent.

KAUS, Presiding Justice.

In a two count information defendant was charged with violations of section 11531 of the Health and Safety Code (sale of marijuana) and section 11503 (sale of a substance falsely represented to be a narcotic.) After a jury trial he was found guilty on both counts.

On April 11, 1966, Officer Brown of the Los Angeles Police Department was working 'undercover narcotics.' He knew the defendant who had sold him some pills on April 7. He met him on the corner of Fifth and Main. Defendant asked him 'how were the pills?' Brown said 'they didn't do me any good.' Defendant said: 'I have a joint if you want to buy it.' Brown said he did and defendant told him to meet him across the street at the Belmont Grill. They walked into the restroom. Brown gave defendant $1.00. Defendant gave Brown fifty cents and a brown cigarette which, on later examination by the police chemist, was found to contain marijuana. After this transaction Brown and defendant had a beer together and walked around town for awhile. They were together for about an hour.

Brown again met defendant at the Belmont Grill on April 14. Defendant was at the bar talking to another gentleman. Brown and another officer had a beer together. When Brown was getting ready to leave defendant said 'wait a minute. I have got some grass ¹ if you still want it.' Defendant walked to the restroom. When he returned he handed Brown a tinfoil package. Brown gave defendant $5.00.

An examination of the contents of the package by another police chemist revealed that what defendant delivered to Brown was not a narcotic.

Cross-examination of Brown was uneventful. It fastened on a statement by Brown to the effect that before April 11 he had made about seven or eight purchases of marijuana in an undercover capacity. He could not recall the date or the seller of the last purchase immediately before April 11. He had no transactions between April 11 and April 14. He recalled the clothing defendant had worn when he had sold pills on April 7. It was the same as defendant's clothing on April 11. He had refreshed his recollection in that respect. He did not know the name of the police officer who was directing traffic on the corner of Fifth and Main on April 11. The first purchase he had made as an undercover officer was from a male whom he described in some detail. He remembered the place of the purchase, but not the date. The second purchase was from a female whose appearance he described. He did not know exactly how many days elapsed between the first and second purchases. The third purchase was from another female, also described in detail. He recalled the address. The fourth transaction was with a male, again described in detail. He recalled the names of all four sellers. He did not recall from whom he made the fifth purchase.

Although the record compels the conclusion that defendant knew that Brown expected to buy marijuana on each occasion, there is no direct evidence one way or another concerning defendant's knowledge or belief as to the nature of the contents of the tinfoil package delivered on April 14.

Defendant did not testify.

During closing argument the prosecutor made the following statements to the jury:

'Looking at this evidence Which, incidentally, has not been refuted by the Defendant, there is no controverting evidence from the other side. * * *

'The case, as I see it, referring to the evidence coming from the witness stand, is overwhelmingly strong as compared to that coming from that Defendant. * * * There is no evidence offered by the Defendant to controvert what the People offered. They certainly have that opportunity * * *. I was in the process of stating that the evidence in this case is uncontroverted in that, Although the defense has an opportunity to offer evidence rebutting the evidence offered by the People, this was not done in this case. * * *' (Emphasis added.)

The court instructed the jury as follows: 'It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus the decision as to whether he should testify is left to the defendant, acting with the advice and assistence of his attorney. You must not draw any inference of guilt from the fact that he does not testify, nor should this fact be discussed by you or enter into your deliberation in any way.'

The argument to which defendant's counsel devotes the major portion of his exceptionally well written briefs is that the above quoted remarks of the prosecutor violated defendant's Fifth Amendment rights. (Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.) Counsel raises the question whether in a case where the only witness whom defendant could possibly call is the defendant himself, a mere statement that the prosecution's case is uncontradicted constitutes a comment on defendant's failure to testify. We need not decide that point, for as we read the first of the comments quoted above, it is difficult to interpret it as anything except a direct reference to defendant's failure to take the witness stand.

Nevertheless, comment on the defendant's failure to testify does not make the conviction automatically reversible. (Chapman v. State of California, 386 U.S. 18, 22--24, 87 S.Ct. 824, 17 L.Ed.2d 705; People v. Modesto, 66 Cal.2d ---, --- ^*, 59 Cal.Rptr. 124, 427 P.2d 788.) Upon the examination of this entire record we entertain no reasonable doubt that the prosecutor's comment did not contribute to defendant's conviction. (People v. Ross, 67 Cal.2d ---, --- ^**, 60 Cal.Rptr. 254, 429 P.2d 606.)

At the time of the oral argument herein, defendant also complained of the instruction (CALJIC 51. (Re-revised.).) The instruction was given at the request of the People. There are at least two recent decisions (People v. Molano, 253 Cal.App.2d ---, --- ^***, 61 Cal.Rptr. 821; People v. Horrigan, 253 Cal.App.2d ---, --- ^****, 61 Cal.Rptr. 403) which say that it is error to give the instruction. On the other hand People v. Graham, 251 Cal.App.2d ---, --- ^*****, 59 Cal.Rptr. 577 and People v. Elliott, 241 Cal.App.2d 659, 50 Cal.Rptr. 757 appear to be contra. ² We need not choose between these views, since if it was error to give the instruction, it was not prejudicial for the reason noted.

A more serious problem is presented by the instructions with respect to Count II, the charged violation of section 11503.

With respect to both counts the court instructed the jury as follows: 'In a crime such as that of which defendant is charged in Counts 1 & 2 of the information, there must exist a union or joint operation of act or conduct and a certain specific intent.

'In the crimes of the sale of marijuana And offering to sell marijuana and delivering a non-marijuana substance, there must exist in the mind of the perpetrator The specific intent to sell marijuana, and unless such intent so exists that crime is not committed.' (Emphasis added.)

With specific reference to Count II the instruction was as follows: 'Every person who agrees, consents, or offers to unlawfully sell a narcotic to any person and then delivers instead a non-narcotic substance, or material, is guilty of a crime.'

These two instructions, read together, tell the jury in the plainest possible words that section 11503 is only violated if the defendant offers to sell a narcotic, in this instance marijuana, with the specific intent to sell marijuana.

As we will demonstrate there is some doubt from the heretofore decided cases whether a fraudulent intent to deliver a nonnarcotic substance is a necessary ingredient of section 11503. No case, however, holds that sincerity on the part of the defendant must be shown by the prosecution. In fact if defendant is sincere the mere offer violates either section 11501 or 11531, depending on whether the offer is to sell marijuana or some other narcotic. (People v. Jackson, 59 Cal.2d 468, 30 Cal.Rptr. 329, 381 P.2d 1; People v. Brown, 55 Cal.2d 64, 68, 9 Cal.Rptr. 816, 357 P.2d 1072.) ³

If it is the law that it is immaterial to a violation of section 11503 whether the defendant defrauded his customer, there can be no prejudice from the erroneous instruction because all that the court did was to add an element to the crime which the People were under no obligation to prove. If, on the other hand, it is an essential element of the crime that there be an intent to defraud, defendant was indeed prejudiced because the jury would have found him guilty even if it believed that his intention was honest.

There are at least two decisions in which it is said that section 11503 demands an intent to defraud. In People v. Lopez, 213 Cal.App.2d 668, 675, 28 Cal.Rptr. 912 the defendant complained that the trial court did not instruct the jury that one of the elements of the offense was his knowledge of the nonnarcotic nature of the substance delivered. The court appeared to feel that an instruction to that effect was necessary, but found that such an instruction had, in effect, been given. In People v. Contreras, 226 Cal.App.2d 700, 702, 38 Cal.Rptr. 338, 339 we find the following statement: 'Under section 11503 of the Health and Safety Code, the law requires a showing of specific intent to furnish a substitute non-narcotic for a narcotic.'

On the other hand in People v. Lewis, 206 Cal.App.2d 82, 85, 23 Cal.Rptr. 495, 497, we read: 'A violation of section 11503 of the Health and Safety Code requires only that a defendant agree, consent or offer to unlawfully sell,...